THE UNIVERSITY OF MELBOURNE
FACULTY OF LAW
VALEDICTORY ADDRESS TO MARK THE RETIREMENT OF THE HONOURABLE ALASTAIR NICHOLSON AO RFD
MELBOURNE, THURSDAY 15 APRIL 2004
NICHOLSON CJ, AUSTRALIAN FAMILY LAW AND INTERNATIONAL HUMAN RIGHTS
The Hon Justice Michael Kirby AC CMG*
"A SPECTACULAR JUDGE"
The retirement of most judges passes without notice, outside the cloistered world of the legal profession. This cannot be said of Alastair Nicholson, a distinguished alumnus of this Law School. An insightful essay on his long service as the second Chief Justice of the Family Court of Australia, published in The Age[1], observed:
"Nicholson has been a spectacular judge; perhaps appearing more extraordinary as the society around him has grown increasingly conservative".
The same article remarked that:
"In person, Nicholson is genial, and quick to talk about issues. He is a journalist's dream in one sense - never failing to answer a question directly and with a candour unusual in public life. But he is slow to delve into the personal, and seems almost puzzled when asked about the effect on him of his work - all the pain, love and hate he has seen pass through his Court".
Alastair Nicholson will retire from judicial office on 2 July 2004. At a ceremonial sitting on 2 April 2004 his service to the law and the people of Australia was honoured by judges, members of the legal profession, politicians and other citizens. It is too early to assess the full impact of his judicial work. Such things are measured in decades, if not longer. My purpose, as a Justice of the High Court, a fellow citizen and friend, is to identify some of the features of his career, some aspects of his personality and service and a few elements of his jurisprudence that are of particular interest to me.
It is fitting that I should be called on to honour him. In a dark moment, his was a rare judicial voice publicly lifted to defend me and the independent courts when so many other voices fell silent[2]. Such conduct was typical of the man. Brave, forthright and valiant in the defence of the judicial institution.
No Melburnian (unless it be Dame Nellie Melba) has enjoyed so many farewells as Alastair Nicholson. It is therefore superfluous to spell out in detail the well known steps in his distinguished career. However, the record demands that the main milestones be mentioned in order to set the context.
Nicholson CJ was born in August 1938. He was raised on his parents' coffee plantation in the then Australian Territory of Papua New Guinea. At the time, it was emerging from the perils of a deadly war. He attended the famous Scotch College in Melbourne as a boarder. He took his degree in law at Melbourne University. In 1961 he was admitted to legal practice. He joined the Victorian Bar in 1963. In 1979 he was appointed one of Her Majesty's counsel. Between 1982 and 1988 he served as a judge of the Supreme Court of Victoria. Then, in 1988, he succeeded Elizabeth Evatt at the second Chief Justice of the Family Court of Australia.
In the Family Court, Nicholson CJ presided over countless trials and appeals, dealing with every nook and cranny of family law as it is known in this country. He chaired numberless committees and meetings of the court. He attended hundreds of legal conferences in Australia and overseas. He earned recognition amongst his peers for his tremendous energy and unbounded intellectual curiosity. Thus, he was elected President of the Australian Association of Family Lawyers and Conciliators in 1993. In 1997 he was elected President of the Association of Family and Conciliation Courts and chaired the Second World Congress on Family Law and the Rights of Children. His mind was ever open to new concepts, including some from sources overseas, a feature more possible in the field of family law than most because of the universal phenomenon of family breakdown with its consequences for the upbringing of children and the division of property.
From the start, in the Family Court, Nicholson CJ had to face important challenges that would have broken a lesser spirit. On his arrival, morale was low, partly because of unprecedented, murderous attacks on judges of the new court and on their families. The court's workload grew but its budget did not keep pace. The challenge of introducing new technology was one which Nicholson CJ embraced with gusto. The introduction of child support legislation, and the reference to the Commonwealth by the States of powers in relation to ex-nuptial children, mirrored significant social changes. Drug dependence, serial relationships, sexual abuse of children and strident lobby groups made the post of Chief Justice of the Family Court of Australia a particularly taxing one[3]. To keep on top of these institutional challenges, whilst absorbing significant changes in the governing legislation[4] and in the doctrine propounded by the courts, would have tamed the energies of a lesser person. But Nicholson CJ had long demonstrated a toughness and sense of public duty that was to strengthen his resolve and see him through.
He has had a prolonged connection with the Australian Defence Force rising to Judge Advocate General between 1987 and 1992. The path that began as a humble Flight Lieutenant in the Legal Reserve of the Royal Australian Air Force, with service in Australia and at Butterworth in Malaysia, led ultimately to his promotion to the rank of Air Vice-Marshal. He was not forced by birth or necessity to contribute in these civic ways. It was part of the Presbyterian upbringing that gave him his values and strengthened him in all that he did. He was fortunate to be accompanied on his public journey by his wife Lauris, his children, family and friends. When all around him marriages and relationships were breaking apart, with the inevitable pain and stress that this causes, his family support was rock-solid. As one who has similarly enjoyed such a stable anchor to a public life, I can aver the great debt that the Australian Commonwealth owes to Lauris Nicholson and the family.
From his upbringing as a simple Presbyterian, like that other fine Victorian Robert Menzies, through his strong foundation in family life, his devoted service in the defence reserve, his duty in the courts and his uncompromising defence of judicial independence, Alastair Nicholson has revealed strong elements of conservative values in his makeup. When the dust settles, it is those who defend the country and its institutions, who are the faithful conservatives - not the smashers of conventions and the prating, chattering critics who damage fundamental things.
Alastair Nicholson has known from an early age that to endure, great institutions must be defended but also must change and adapt. These insights, probably formed in his earliest years observing the end of Empire in Papua New Guinea, guided him through his post as Chief Justice. From the start, his court (because of the nature of its duties) was a target for criticism and calumny, most of it undeserved. He could have ignored the attacks and the personal affronts. Yet that was alien to his upbringing and character as a child of the Enlightenment. He wanted to engage with critics and supporters and with the Australian community whom he served. Not for him to preside over a court sailing in a sea of dispirited morale. He led from the front, for that was his nature. This made him controversial in some circles. He was more candid and forthright than most judges. This brought him into difficulties with successive governments, ministers, legal personalities, media pundits and civic groups.
At the farewell sitting, the head of the Australian Bar Association said that Nicholson CJ would wear his battles with successive Attorneys-General as a "badge of honour"[5]. Doubtless, some will disagree. Even in his own remarks at his farewell, he took the occasion to criticise a proposal to establish a new Family Tribunal, limiting the representation of participants by lawyers, as "a serious attack on civil liberties of Australians, smacking more of totalitarian regimes than of a democracy"[6]. It was not his style to leave office otherwise than with all guns blazing. He had doubtless read that in Germany, in the 1930s, the judges, witnessing so many wrongs, only lifted their voices once and then solely in defence of their pension rights. Alastair Nicholson was never one to embrace that model of judicial restraint or anything like it.
The tributes to him by judicial colleagues and officers of the Family Court, judges overseas and legal personalities are balanced by the comments of critics (usually unnamed) who condemn his endeavour to communicate with citizens beyond the legal cloister; who picture him as a relic of an earlier time of idealism over law and its role in society; or who describe him as a bigot who was "snowed by feminists" and mortally wounded by the fierce controversies that whirled around him[7]. There can be no gainsaying that he performed his duties as Chief Justice in a novel and highly personal manner. Only time will reveal a rounded assessment. However, none who have read his judicial opinions and his other contributions can doubt his intellectual capacity, energy, and curiosity about the human condition and its manifold elements. In the whispering courtrooms of equity and the sharp-eyed battlegrounds over patents, the Tax Act and marine insurance, it is rarer to see the kaleidoscope of human emotions than in the crowded hearing rooms of the Family Court. Fortunate was Australia that the second Chief Justice of that court was a man of feelings - warm, intelligent, engaged, creative, loyal to friends, to institutions and to the law alike.
The best assessment of him that I read, following his retirement, was not written by a lawyer at all. It was spoken by Robert Hannaford, the famous portraitist, who painted a splendid image of Nicholson CJ that will hang in the Melbourne judicial chambers of the Family Court. The portrait captures the man not in street clothes but in judicial robes - looking uncharacteristically vulnerable and perhaps just a little uncertain of what lies ahead after all the turmoil and the shouting and the anger and the passion of 43 years in the law (22 as a judge and 16 as Chief Justice). Hannaford said[8]:
"I found him a wonderful man. I developed a deep sense of someone who is a very balanced person, someone who has great convictions about his responsibilities and concerns for families, especially for children and for Indigenous people, and also someone who has many and varied other interests".
Those interests will carry this "spectacular judge" forward into new and different challenges. A clue to what they will involve may be found in the jurisprudence of his opinions in the Family Court. He has leapt beyond the prison of the world of the law as it was taught to him at this University 40 years ago. Unlike many other Australian lawyers, he has kept pace with the radical changes in that world and in the law that serves the world.
In the balance of these remarks, I intend to refer to what I consider the most important insight that Nicholson CJ brought to the doctrine of family law, during his service as Chief Justice. I refer to his perception of the convergence of municipal law and international law. Of this, he was an early evangelist. Future generations of lawyers, and not just family lawyers, will honour him on this account.
"CONVERGENCE WITH INTERNATIONAL LAW"
Justice Antonin Scalia, of the Supreme Court of the United States, full of anger at what he sees as legal heresy, is not a pretty sight. A few days ago, in Washington, he took the occasion of an address to the American Society of International Law, to denounce the growing tendency of the majority on his Court, to refer to international law and to cite references to the decisions of national and international bodies in the elaboration of American law. Using language of the same colour and vigour as Nicholson CJ often deployed, Justice Scalia declared[9]:
"We have no authority to look around and say 'wow, things have changed'".
The language may be the same, as is the willingness to engage in intellectual debate over an issue that transcends unvisited courtrooms. But the viewpoint could not be more different. A source for the energy of Justice Scalia, and local counterparts of a similar persuasion, is undoubtedly the vexing realisation that, for their parochial vision of the law, time is running out[10].
Late in 2003, Justice Sandra Day O'Connor, also of the United States Court, suggested that "with time, we will rely increasingly on international and foreign law in resolving what now appear to be domestic issues"[11]. The significance of this assertion, in the context of the United States, cannot be overstated. Many observers point to the influence which Justice O'Connor wields in the determinative votes of the United States Court[12].
Fifteen years earlier, at about the time Nicholson CJ was commencing his service as Chief Justice of the Family Court of Australia, the United States Court was faced with a dilemma[13]. It concerned whether a petitioner who had committed a murder when aged 15 years, could be sentenced to death in punishment. Justice Stevens (with whom Justices Brennan, Marshall and Blackmun joined) held, for the Court, that the "cruel and unusual punishments" prohibition in the Eighth Amendment to the United States Constitution prevented the execution of a person under the age of 16 years at the time of the offence. So far, there was nothing remarkable in the decision which built on the meandering course of the death penalty jurisprudence of American constitutional law.
It was in the reasoning of Justice Stevens that the new element appeared. He referred to the judicial decisions and legislation on the execution of minors appearing in many foreign jurisdictions which shared the "Anglo-American heritage", as well as in the law of the "leading members of the Western European community"[14]. Justice Stevens even referred to the position in Australia[15]. It was a strong opinion, deploying an argument taking a legally novel and uncharacteristically global viewpoint.
Justice Scalia wrote a vigorous dissent (with whom Chief Justice Rehnquist and Justice White joined). He stated that the "civilised standards of decency in other countries" were "totally inappropriate as a means of establishing the fundamental beliefs of this Nation"[16]. The decisive opinion in the case, that saved Mr Thompson's life, was written by Justice O'Connor[17]. She agreed in the opinion of Justice Stevens. But she wrote more narrowly. She made no reference, at that time, to international or foreign law. So far, the extrospection propounded by Justice Stevens remained one falling short of a court majority.
The decision in Thompson affords the background to Justice O'Connor's more recent assertion that "There has been a reluctance in our current Supreme Court to look to international or foreign law in interpreting our own Constitution and related statutes[18]. So it was at the time when Nicholson CJ assumed federal judicial office in Australia. What a difference a decade can make in the law.
In 2002, in Atkins v Virginia[19], and in 2003 in Lawrence v Texas[20], the "first indicia of change" in the approach of the United States Court were acknowledged by Justice O'Connor[21]. In Atkins, Justice Stevens (with whom Justices O'Connor, Kennedy, Souter, Ginbsberg and Breyer joined) invoked the established international consensus against the imposition of capital punishment upon mentally handicapped persons to inform the "evolving standards of decency" that demanded that such a sentence be set aside on constitutional grounds[22]. The case pushed Thompson to the next stage. It did so affording majority endorsement to a line of reasoning that invoked international law as relevant to the exposition of American legal and constitutional doctrine.
Still more dramatic was the decision in Lawrence. There, Justice Kennedy (with whom Justices Stevens, Souter, Ginsburg and Breyer joined) cited a series of decisions of the European Court of Human Rights, and of the law as expounded in several foreign nations, to support the proposition that a Texas law criminalising private adult homosexual conduct was invalid by the standards of the United States Constitution[23]. The reference to international and regional human rights law was described by Justice Kennedy, writing for the Court, as constituting a statement of "values" that were "share[d] with a wider civilisation"[24]. Justice O'Connor again wrote a separate concurrence. She founded her agreement not on notions of privacy but on still broader notions of legal equality. Later, she was describe Lawrence as additional evidence of the new "[s]olicitude for the views of foreign and international courts"[25].
Before these developments in the United States, and until the same time in Australia, the inward-looking nature of legal doctrine was well documented and often the subject of commentary[26]. The jury is still out in the United States as to whether the sharply divided opinions of the Court over the use of international and foreign law represent a fresh turning or merely a temporary diversion. But the pointers to change are unmistakable.
As often happens in these things, developments of a like kind in Australia occurred contemporaneously and doubtless under the stimulus of similar intellectual forces. In this country, the encouragement to judges to look beyond the traditional sources of Australian law to international law (especially as declaring universal principles of human rights) came in the landmark judgment in Mabo v Queensland [No 2] [27]. There, Justice Brennan declared that it was inevitable, following Australia's ratification of the International Covenant on Civil and Political Rights (ICCPR), and specifically of the First Optional Protocol to that Covenant, that the powerful force of human rights law, thus endorsed, would bring its influence to bear on judicial exposition of Australian law. Mabo was not, specifically, a constitutional case; but it was a decision of the most profound legal importance. The passage in Justice Brennan's reasoning was critical to the decision. Without its invocation of a basis in human rights, overriding the earlier racial discrimination in the common law extinguishment of native title, the legal step taken in Mabo could never have occurred.
Few Australian judges or lawyers noted the importance of the Mabo principle at the time. I did, because for five years I had been propounding the same idea in the New South Wales Court of Appeal, following my return from the conference at which the Bangalore Principles on the Domestic Application of International Human Rights Law had been propounded[28]. Most Australian judges remained unaware of the development. Those who knew of it were generally sceptical or even hostile. This is usually the response of the legal mind to the challenge of fresh insights. The synapses of peaceful brains prefer not to be disturbed.
One exception to this judicial resistance arose in the judicial and extrajudicial pronouncements of the new Chief Justice of the Family Court. It was these pronouncements by Nicholson CJ that placed the Family Court "at the forefront of recognition of the potential impacts of international law on the interpretation of domestic law"[29]. The principle stated in Mabo provided an important legal foundation, in his professional work and for the judicial "duty to advance and preserve human rights"[30].
A useful starting point for my analysis is the decision that Nicholson CJ wrote with Fogarty J in Murray v Director, Family Services ACT[31]. The decision was given in 1993, a year after Mabo. It concerned an alleged abduction of children from New Zealand to Australia. One argument, advanced on behalf of the children's mother, was that the primary judge, by ordering the return of the children to New Zealand, had failed properly to consider the effect of the United Nations Convention on the Rights of the Child (UNCROC) before making that order. Specifically, it was asserted that the provisions of the Family Law (Child Abduction Convention) Regulation, which had partly incorporated into Australian municipal law the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) [32], was to be construed in a manner consistent with UNCROC.
Apparently standing in the way of this argument was the proposition, often stated in Australian law, that international instruments (such as UNCROC) do not, as such, form part of local law in the absence of explicit statutory incorporation[33]. So how did the Family Court under Nicholson CJ, reconcile this apparent diversity of judicial approaches to the use of international law? The one traditional, the other more modern and seemingly more relevant to the age of expanding international legal regulation?
In their joint opinion, Nicholson CJ and Fogarty J recognised that international law, unless incorporated, was not as such part of Australian domestic law. However, that did not prevent the use of international law (1) to help resolve ambiguities in the interpretation of domestic primary or subordinate legislation[34]; (2) to fill gaps in such legislation[35]; and (3) to elucidate and develop the common law[36].
In the event, in Murray, Nicholson CJ and Fogarty J (with whom Finn J relevantly agreed) held that the provisions of UNCROC did not give rise to an inconsistency with the Hague Convention. For that reason, UNCROC could not prevail over the latter Convention. But the groundwork was set for a useful analytical framework for many of the decisions of Nicholson CJ which were to follow concerning the convergence of municipal and international law. It is helpful to make reference to some of the decisions that have shown the way that international law can, and sometimes cannot, be used in the exposition of law in the Australian nation.
"INTERNATIONAL LAW AND STATUTORY INTERPRETATION"
Of the three categories identified by Nicholson CJ and Fogarty J in Murray, the first is the least controversial[37]. Thus in Kartinyeri v The Commonwealth[38], Gummow and Hayne JJ declared that the legislation in question in that case was to be "interpreted and applied in conformity and not in conflict with any relevant established rules of international law [but] only in so far as its language permits". Although I took a broader view in Kartinyeri, the acceptance of the utility and application of the principles even of unincorporated international law in the interpretation of Australian legislation dates back to the earliest days of the High Court[39].
A supporting principle, also well established in Australian law, is that courts will not construe legislation to abrogate or curtail fundamental rights or freedoms (including those expressed in international law) unless an intention to do so on the part of the legislature is manifested by unmistakable and unambiguous language[40].
Useful although these principles of construction may be, they clearly have their limitations. One has been explained by Nicholson CJ and I agree with it[41]. Where provisions of international instruments "reveal but do not resolve the conflicting interests which, as a matter of municipal law, attend the case" before the court, the solution to the problem in hand must be found in municipal law, not in artificial extension of unincorporated international law.
This limitation is illustrated in a case of national relocation of former domestic partners that reached the High Court in AMS v AIF[42]. There, the father and mother were contesting the "sole guardianship and custody" of the single child of their relationship. The parents had not married. They lived in the Northern Territory at the time of the child's birth. After they separated, both returned to Perth, the mother with the child. However, shortly afterwards, the mother informed the father that she wished to return to the Northern Territory with the child. The mother applied for orders permitting that course; however these were refused by the primary judge. Indeed, the mother was restrained from changing the child's residence in a way that would reduce the father's contact with the child. Needless to say, this imposed a severe practical constraint on the freedom of movement and career pursuits of the mother.
In the High Court, conflicting opinions were expressed as to the construction of the Family Court Act 1975 (WA). Its provisions relevantly mirrored the Family Law Act 1975 (Cth) before changes introduced by the Family Law Reform Act 1995 (Cth). Arguments were addressed to the Court to the effect that, because of suggested ambiguity in the statutory provisions, it was permissible to resolve the uncertainties by reference to "the paramount consideration of the welfare of the child". International law was invoked for that purpose. Reference was made to UNCROC, to the ICCPR and to the Convention on the Elimination of Discrimination Against Women (CEDAW). In my reasons, I accepted that the international principles referred to by the parties could help to put the "controversies into a conceptual context and express the basic values which must be taken into account"[43]. In any case involving family relocation issues, it is necessary to consider the paramount interest of the welfare of the child together with the "legitimate interests and desires of the parents"[44]. Nonetheless, "the international conventions ... merely express and sometimes the conflicting principles that are already reflected in Australian law and court decisions". For that reason, "examination of the international instruments, or the jurisprudence which has gathered around them" did not ultimately assist in resolving the controversy[45]. In the end, it had to be resolved by reference to unelaborated local law.
The later relocation decision in U v U[46] affords another illustration of a like point. There, the parents of a child, all of them deriving from India, were in dispute concerning the mother's proposal to relocate to that country with the child. A parenting order had been made in favour of the mother. However, it required her to reside in the vicinity of Wollongong. The primary judge refused to release the mother from that order. The Full Court of the Family Court found no error in that discretionary decision. The majority of the High Court affirmed that decision[47].
Justice Gaudron and I dissented, concluding that the primary judge had failed to consider properly the extent to which the interests of the mother in returning to India would coincide with those of the child[48]. Interestingly, both in the majority[49] and minority opinions reference was made to the contextual significance of international statements of fundamental rights. In the view of the majority, such considerations did not resolve the issues arising in the case. However, the decision in U v U illustrates the permeation of international law into the discourse of the applicable principles of Australian law on the subject.
A second control on the use of international law was pointed out in 1997 by a Full Court of the Family Court in which Nicholson CJ presided[50]. In that case, the Full Court was concerned with s 43(c) of the Family Law Act. That paragraph required that, in the exercise of the Family Court's discretion, regard was to be had to "the need to protect the rights of children and to promote their welfare". The paragraph had been in the Act since its first passage in 1975. On that basis, the federal Attorney-General submitted that it should not be interpreted by reference to UNCROC. This was because that statement of international law was not in existence at the time of the legislative adoption of s 43(c).
In their joint reasons in the case, Nicholson CJ, Fogarty and Lindenmayer JJ offered five reasons, apart from legal authority, for rejecting this submission. First, although UNCROC had not been adopted at the time of the passage of the Family Law Act, the concept of the rights of children was well established by that time, having been recognised in 1959 in the Declaration on the Rights of the Child, which preceded UNCROC, and to which Australia had acceded[51]. Secondly, the rights of children were not to be regarded as static. The paragraph of the Act was to be interpreted as understood from time to time[52]. Thirdly, UNCROC was to be accorded particular attention because it was one instrument of the international law of human rights that had secured virtually universal acceptance of all nation states in the international community. It was therefore important that domestic law, so far as possible, should accord with it. Fourthly, UNCROC was scheduled to the Human Rights and Equal Opportunity Act 1986 (Cth)[53]. It therefore enjoyed "special significance" in Australian municipal law as a treaty nominated by the Federal Parliament in this way[54]. Fifthly, it was apparent that other provisions, later introduced into the Family Law Act, were enacted in reliance upon UNCROC. The reasoning of the Full Court in this manner reflects the way in which the House of Lords was later to reason over the interpretation of English legislation so that it would be in harmony with later adopted principles of universal human rights[55].
The use of international law to help resolve ambiguities in local legislation is by now well established in Australian jurisprudence[56]. More controversial is the use of this source to fill gaps in local legislation. This, it will be remembered, was the second category identified by Nicholson CJ and Fogarty J in their decision in Murray[57].
In Dietrich v The Queen[58], Toohey J in the High Court noted authority for the proposition that "a court may, perhaps must, consider the implications of an international instrument where there is a lacuna in the domestic law"[59]. Later statements in the High Court suggest that this broad interpretative approach may be especially relevant where legislation or delegated legislation has been made that specifically purports to implement the relevant international obligation[60].
The operation of this principle arose for consideration before a Full Court of the Family Court in P v Commonwealth Central Authority[61]. The case reached the High Court under the name DP v Commonwealth Central Authority[62]. It was heard together with a separate appeal from the Full Court of the Family Court in JLM v Director-General NSW Department of Community Services[63].
In the Full Court, dealing with the case of P, Nicholson CJ, Buckley and Kay JJ noted that Article 1 of the Hague Convention expressed two core objects. These were to secure the prompt return of children wrongfully removed to, or retained in, a Contracting State; and to ensure that rights of custody and of access under the law of one Contracting State were effectively respected by the courts and tribunals of other Contracting States[64]. On this basis, the Full Court endorsed the opinion of Nygh J to the effect that the purpose of the Hague Convention and the Regulation was "to limit the discretion of the Court in the country to which the children had been taken quite severely and stringently"[65].
In support of this view, Nicholson CJ and his colleagues also relied on an earlier explanation of the Hague Convention by me which had embraced a broad approach that, ultimately, the "best interests" principle enshrined in Article 3(1) of UNCROC was normally to be achieved by returning the particular child to the country from which it had been unlawfully taken so that, usually, the "best interests" could be determined there[66].
Unfortunately for their Honours, my approach in this respect was not supported by a majority of the High Court. Gleeson CJ dissented, although on another point[67]. However, the majority (Gaudron, Gummow and Hayne JJ) rejected the notion that the exception to mandatory return of an abducted child provided for in Reg 16(3)(b) of the applicable Regulation was to be construed narrowly because of the context. The majority went on to find that the mother in the case of P, who had unlawfully brought her disabled child to Australia, had discharged the onus of invoking the exception[68]. I disagreed, faithful as I saw it to the language and policy of the Hague Convention and the local Regulation giving it effect.
Two points may be made concerning this authority. The first is that it indicates once again the extent to which all Australian courts are now quite regularly involved in clarifying the interaction of Australian law and international law. This is no longer a rare occurrence, whether in the Family Court, in the High Court of Australia or elsewhere. It is now part of the ordinary vocation of judging and lawyering in this country.
Secondly, whatever views may be held concerning the outcome of the litigation in DP v Commonwealth Central Authority, some seven years before the final resolution of the question by the High Court, Nicholson CJ, in a remark quoted to a conference anticipated the result at which the High Court arrived[69]:
"Unless the Contracting States to the [Hague] Convention are prepared to take further steps to improve the convention, its very existence is threatened, for courts of Recovery States would be quick to find exceptions where they are not satisfied that the welfare of the children will indeed be enhanced by their return to the original jurisdiction".
This is the danger to which I was endeavouring to point in my opinions on this issue. It was a danger to which the Full Court of the Family Court was also alert. The achievement of the international treaty response to the serious and growing problem of child abduction, in the age of international air transport, is a major one for the global community. The Hague Convention is an important achievement for the protection of vulnerable children and the safeguarding of their interests and those of their parents and families. It would be a tragedy if this important achievement of international law were undermined by parochial, and even xenophobic, decisions of municipal courts, asserting that the abducted child is better off as a result of the abduction and should not be returned as the Convention and local law contemplate will happen virtually as a matter of course.
"INTERNATIONAL LAW AND COMMON LAW"
The third, and probably most significant category for the influence of international law upon Australian law, mentioned by Nicholson CJ and Fogarty J in Murray[70] is the influence which international law (particularly when expressing universal principles of human rights) has upon expressions of the common law of Australia[71].
The extent to which Australian judges are utilising international instruments in the ascertainment of Australian common law has expanded notably in the decade since Mabo. An interesting recent illustration is the reasoning of Gleeson CJ in dissent in Catanach v Melchoir[72]. There, the question concerned the state of the common law of Australia in relation to a claim for damages for the unexpected birth of a child following negligent advice after a failed sterilisation procedure. In his opinion, denying recovery, Gleeson CJ looked to no fewer than seven international[73] and regional[74] human rights instruments (even including the Arab Charter on Human Rights 1994) to support the conclusion that it would be offensive to local legal principle to assign an economic value to the parent-child relationship[75]. In reasoning in this way, Gleeson CJ was merely implementing what he had earlier said in an extra-curial paper[76]:
"Courts may use international treaties and conventions in resolving uncertainties in the common law".
Almost a decade earlier, Sir Anthony Mason, writing in a family law context, suggested that although international instruments, such as UNCROC, were not formally incorporated into Australian domestic law, they could be "used as a legitimate guide by the courts, in developing the common law, particularly in developing difficult concepts such as the best interests of the child"[77]. This view was propounded by reference to the judicial opinion of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh[78]. That decision, in turn, had built upon the seminal passage in Mabo.
Although, in the High Court more lately, some cold water has been thrown on the authority of the decision in Teoh[79], it has not been overruled. Meantime, in the Full Court of the Family Court, Nicholson CJ in T and S[80] illustrated the way in which Teoh could sometimes be useful in approaching complex and novel legal questions.
The case of T and S concerned a residence and contact dispute between a father and mother of a child. The mother had claimed that she had been physically abused by the father. Her allegation was not accepted by the primary judge. During the trial, the father was legally represented throughout the entire hearing of six days. The mother was legally represented only on the last day. On appeal, the mother was represented for the first time by senior counsel. A submission was put to the appellate court that, in the circumstances, the mother should be allowed, exceptionally, to present further affidavit evidence to support the allegation of domestic violence rejected at trial. Following the decision of the High Court in CDJ v VAJ>[81], the Full Court exercised its discretion>[82] to permit fresh evidence to be adduced on behalf of the mother>[83].
In his reasons, Nicholson CJ stated that the case highlighted "a serious problem affecting the administration of justice in family law proceedings">[84]. He made reference to the High Court decision in Teoh. He held that the mother had been denied the "practical enjoyment of rights which [were] meant to be assured" under CEDAW and the Declaration on the Rights of Disabled Persons 1975. The latter was considered relevant because of the suggested recognition in it of the predicament of women subjected over long periods to physical violence within domestic relationships>[85].
Leave to appeal from the judgment of the Full Family Court in T and S was refused by the High Court>[86]. Leaving aside the international element, the comments of Nicholson CJ concerning the disadvantage suffered in the litigation by the unrepresented mother might have seemed largely self-evident. However, they occasioned one of many personal attacks on the Chief Justice by well-known media "pundits" and others holding a contrary view. As is so often the case in attacks from that quarter, when carefully analysed they were found to be "poorly researched and factually incorrect">[87].
The intolerance and even rage of critics who denounce the growing power and influence of international law upon our legal doctrine portray a shameful ignorance concerning the way law develops to serve a free society as it changes. Because one of the undoubted realities of today's world is the power of globalisation, it is inevitable that the influence of international law will continue to expand and to affect national legal systems. One of the great curiosities of this discourse is that the global economy needs the expansion of international law to regulate and sustain its expanding strength. The self-same pundits who embrace the panacea of the global economy are not, however, usually so enthusiastic about the other side of the coin. Yet with the attributes of increasing global economic freedom come the attributes of personal freedom, individual human rights and human dignity>[88].
INTERNATIONAL LAW AND CONSTITUTIONAL INTERPRETATION
This brings me, by way of return, to the passages in the decisions of the United States Supreme Court where international law is increasingly being invoked in the elaboration of that nation's Constitution. Even before the recent American developments, and for much the same reasons, I have suggested that the interpretation of the Australian Constitution must also nowadays be undertaken in the context of international law. Our Constitution speaks to Australia of the nation we are. But it also speaks to the world in which Australia, as a nation state, must find and play its part>[89].
So far, my view on this subject has not, in Australia, gained broad acceptance>[90]. A view of the Constitution persists in many circles that it is, in effect, a colonial document, largely confined to the division of powers (mainly economic powers) among the successors to the British colonies in the South Pacific. This is a crippled and over-narrow view of the Australian Constitution. It is one that has failed to keep pace with the legal context in which that Constitution operated. It is one that I would reject. Increasingly, a global approach to constitutionalism is adopted by scholars and judges across the world - even, as I have shown, in that most isolationist country, the United States of America. One United States commentator recently explained[91]:
"International law shows evidence of constitutionalisation, at least in the broadest terms of 'imposing limits on the powers of government, adherents to the rule of law, and protection of fundamental rights'. Where international law was formerly blind to the treatment of individuals as such by states, it increasingly constrains the terms of state actions".
One feature of the internationalisation of the law, including constitutional law, is the growing understanding (described most clearly by Professor Ian Brownlie QC, the noted international legal scholar[92]) that in making their decisions on subjects relevant to international law, national courts are exercising a kind of international jurisdiction. Thereby, such courts (however unconsciously or even reluctantly) become part of the global machinery for constitutionalism and the rule of law that is the hope of the future of humanity. Indeed, it is not too much to say that it is probably a development essential to the survival of our species. In due course, this perception will become clearer to Australian judges and lawyers, including specialists in constitutional law. Ultimately, it should not be so difficult for us in Australia. We have lived for a century with the notion of parallel federal and State legal jurisdictions. The concept of an international jurisdiction is one that comes naturally to an Australian citizen, aware of our basic constitutional features.
The debates over the use of international law in constitutional interpretation will have to be resolved in the High Court and not, as such, in the Family Court. They will not be resolved during my judicial service. But mark my word, they will be resolved in favour of a harmonious relationship between Australian constitutional law and international law.
Unsurprisingly, in his extra-judicial remarks, Nicholson CJ has supported the need to view constitutional law through the prism of international law - particularly as it affects basic human rights[93]. From the vantage point of his unique experience, he has described the difficulties under the Australian Commonwealth of pursuing effectively the best interests of the nation's children within a constitutional structure that is now replete with anomalies, omissions and difficulties[94].
In 1995, Sir Anthony Mason declared that: "International law is exercising and will continue to exercise a marked influence on Australian family law"[95]. Last year I remarked, to similar effect, that international law has come to play an "undreamt of" role in family law litigation[96].
During the past 16 years, Australia has been fortunate to have had at the helm of its national family court a lawyer in tune with one of the major intellectual movements in the law today. No longer is it good enough for any of us to live in the warm cocoon of our own legal jurisdiction. Ideas, including legal ideas, inform the legal process and reflect the changing times. International law is not, as such, part of Australian law until incorporated lawfully by one of the organs of lawmaking. A treaty may not be incorporated by the judiciary "by the back door", as it were[97]. But that does not deny to the judiciary the interstitial acceptance of the broad intellectual influence of international law upon what they do. In his judicial work, Nicholson CJ learned this lesson early. He practised it faithfully. He recognised its limits. But he also saw, and declared, its great potential for individual justice.
The law and liberty in Australia will shortly lose a devoted judicial servant at the head of a great national judicial institution. The good fortune of Australia is that others will follow. They, in their turn, will make their own contributions. They will be strengthened and encouraged in doing so by the example of Alastair Nicholson. When a full appreciation of his judicial work is written, I do not doubt that many more, and different, insights will be offered. But his early appreciation of the importance of international law for Australia's domestic law will be the brightest of many jewels left behind that will continue long to shine.
Footnotes
(*) Justice of the High Court of Australia. The author acknowledges the assistance in the preparation of this paper of Mr Alex de Costa, Legal Research Officer to the High Court of Australia.
[1] M Simmons, "Court in the Balance as an Era Ends", The Age, 27 March 2004 at 3.
[2] The reference is to a public statement by Nicholson CJ on 17 March 2002 following an attack on the author in the Federal Parliament. See E Campbell and M Groves, "Attacks on Judges Under Parliamentary Privilege: A Sorry Australian Episode" [2002] Public Law 626.
[3] Interview with Chief Justice Alastair Nicholson in Family Court of Australia, Courtside, 26 March 2004 at 2-3.
[4] Most especially after amendments to the Family Law Act 1975 (Cth) introduced by the Family Law Reform Act 1995 (Cth).
[5] Speech by Mr Ian Harrison SC, President of the Australian Bar Association to the retirement sitting of the Full Court of the Family Court of Australia. See Herald Sun (Melb), 27 March 2004 at 9.
[6] Speech of Nicholson CJ at retirement sitting, ibid.
[7] See Simmons, above n 1, at 2.
[8] R Hannaford cited in Courtside, above n 3, at 12.
[9] A Gearey, "Scalia skeptical about foreign law in US", Associated Press, 2 April 2004.
[10] C Patten, "Globalisation and the Law" [2004] European Human Rights Law 6; T Dunworth, "The Rising Tide of Customary International Law: Will New Zealand Sink or Swim?" (2004) 15 Public Law Review 36; J Brun�e and SJ Toope, "A Hesitant Embrace: The Application of International Law by Canadian Courts" (2002) 40 Canadian Yearbook of International Law 3.
[11] Justice Sandra Day O'Connor, Speech given to Southern Center for International Studies (Atlanta, Georgia, October 28, 2003) (http://www.southerncenter.org/OConnor_transcript.pdf) at 2.
[12] See, for instance, M Hamblett. "O'Connor Seen as Pivotal Voice in Race Debate" (2003) 229(62) New York Law Journal 1; and T Mauro and J Edwards, "O'Connor Will be Swing Vote in Affirmative Action Controversy" (2003) 172 New Jersey Law Journal 6. .
[13] 487 US 815 (1988).
[14] 487 US 815 (1988) at 830-831.
[15] 487 US 815 (1988) at 830. Stevens J stated that the death penalty was available in New South Wales for treason and piracy. Arguably, that was the position in New South Wales to 1985 following the enactment of the Crimes (Amendment) Act 1955 (NSW). However, by 1988, the passage of the Crimes (Death Penalty Abolition) Amendment Act 1985 (NSW) and the Miscellaneous Acts (Death Penalty Abolition) Amendment Act 1985 (NSW) ensured that "the death penalty is totally repealed in New South Wales": Hon T W Sheehan, Attorney General, Second Reading of the Crimes (Death Penalty Abolition) Amendment Bill 1985 (NSW) and the Miscellaneous Acts (Death Penalty Abolition) Amendment Bill 1985 (NSW), 10 April 1985, New South Wales Parliamentary Debates, Vol 185, at 5684-5685. Both Acts were assented to on 15 May 1985.
[16] 487 US 815 (1988) at 868 (in footnote 4).
[17] Because Kennedy J was not sitting and because the Supreme Court adopts the practice of affirming the judgment below where the Court evenly divides (see, for example, Dow Chemical Company v Stephenson 539 US 111 (2003)), O'Connor J's opinion was effectively decisive.
[18] Justice Sandra Day O'Connor, Speech given to Southern Center for International Studies (Atlanta, Georgia, October 28, 2003) (http://www.southerncenter.org/OConnor_transcript.pdf) at 2.
[19] 536 US 304 (2002).
[20] 539 US 558 (2003); 122 S. Ct. 2242 (2003).
[21] Justice Sandra Day O'Connor, Speech given to Southern Center for International Studies (Atlanta, Georgia, October 28, 2003) (http://www.southerncenter.org/OConnor_transcript.pdf) at 2.
[22] 536 U.S. 304 per Stevens J., at 329 (in footnote 21) (2003).
[23] 536 U.S. 304 per Stevens J., at 329 (in footnote 21) (2003).
[24] 122 S. Ct. 2242 (2003) at 12, 16.
[25] Justice Sandra Day O'Connor, Speech given to Southern Center for International Studies (Atlanta, Georgia, October 28, 2003) (http://www.southerncenter.org/OConnor_transcript.pdf) at 2.
[26] See A Bayefsky & J Fitzpatrick, "International Human Rights Law in United States Courts: A Comparative Perspective" (1992) 14 Michigan Journal of International Law 1 at 72-80; N Strossen, "Recent US and International Judicial Protection of Individual Rights: A Comparative Legal Process Analysis and Proposed Synthesis" (1990) 41 Hastings Law Journal 805 at 831-36.
[27] 1992) 175 CLR 1 at 42.
[28] The Bangalore Principles are published in (1988) 14 Commonwealth Law Bulletin 1196 and (1988) 62 Australian Law Journal 531. See M D Kirby, "The Australian Use of International Human Rights Norms: From Bangalore to Balliol - A View from the Antipodes" (1993) 16 University of New South Wales Law Journal 363.
[29] J Behrens and P Tahmindjis, "Family Law and Human Rights" in Human Rights in Australian Law (D Kinley ed.) (1998) at 182.
[30] A B Nicholson, "The Role of the Judge" (Paper presented to the National Judicial Orientation Program, Wollongong, 9-14 November 1997) at 12.
[31] (1993) FLC �92-416.
[32] See A B Nicholson, "Australian Judicial Attitudes to the Convention on The Civil Aspects of International Child Abduction" (Paper presented to The International Society of Family Law 8th World Conference, Cardiff, 1 July 2004) at 2.
[33] Chow Hung Ching v The King (1948) 77 CLR 449 at 478, per Dixon J; Bradley v The Commonwealth (1973) 128 CLR 557 at 582, per Barwick CJ and Gibbs J; Simsek v Macphee (1982) 148 CLR 636 at 641-642, per Stephen J; Tasmanian Wilderness Society v Fraser (1982) 153 CLR 270 at 274, per Mason J; Kioa v West (1985) 159 CLR 550 at 570-571, per Gibbs CJ; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 55, per Brennan J (with whom Mason CJ and McHugh J concurred); at 79, per Deane and Gaudron JJ; Chu Kheng Lim v Commonwealth (1992) 176 CLR 1 at 74, per McHugh J; Dietrich v R (1992) 177 CLR 292 at 305, per Mason CJ and McHugh J; at 359-60, per Toohey J; Coe v Commonwealth (1993) 118 ALR 193 at 200-201, per Mason CJ; Kruger v Commonwealth (1997) 146 ALR 126 at 161, per Dawson J.
[34] Murray (1993) FLC �92-416 at 80,255.
[35] (1993) FLC �92-416 at 80,257.
[36] (1993) FLC �92-416 at 80,257.
[37] See H Charlesworth, M Chiam, D Hovell and G Williams, "Deep Anxieties: Australia and the International Legal Order" (2003) 25:4 Sydney Law Review 423 at 457 where it is pointed out that "a standard principle of statutory construction is that, in the case of ambiguity in a statute, the courts should favour a construction that accords with international law."
[38] (1998) 195 CLR 337.
[39] Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363. See A F Mason, "The Tension Between Legislative Supremacy and Judicial Review" (2003) 77 Australian Law Journal 803 at 808-809.
[40] Daniels Corporation v ACCC (2002) 77 ALJR 40 at 47 [35], 57-58 [90]-[94], 66 [134]; H Charlesworth, M Chiam, D Hovell and G Williams, "Deep Anxieties: Australia and the International Legal Order" (2003) 25:4 Sydney Law Review 423 at 447.
[41] A B Nicholson, "Australian Judicial Approaches to International Human Rights Conventions and 'Family Law'" (Paper presented to The Miller Du Toit and The Law Faculty of the University of Western Cape Family Law Conference, Cape Town, South Africa, 26 March 2002) at 33.
[42] (1999) 199 CLR 160.
[43] (1999) 199 CLR 160 at 218.
[44] (1999) 199 CLR 160 at 207. For an analysis of the conflicting "rights" involved in AMS v AIF, see M D Kirby, "Family Law and Human Rights" (2003) 17(1) Australian Journal of Family Law 6 at 12-13.
[45] (1999) 199 CLR 160 at 218.
[46] (2003) 211 CLR 238.
[47] (2003) 211 CLR 238 at 263, per Callinan and Gummow JJ (with whom Gleeson CJ (at 240), McHugh J (at 249) and Hayne J (at 284) agreed).
[48] eg (2003) 211 CLR 238 at 282-283, per Kirby J.
[49] See also references to provisions of the Universal Declaration of Human Rights in the judgment of Gummow and Callinan JJ: (2003) 211 CLR 238 at 261-262.
[50] B and B: Family Law Reform Act 1995; (1997) FLC �92-755.
[51] (1997) FLC �92-755 at 84,226-84,227.
[52] (1997) FLC �92-755 at 84,227.
[53] UNCROC is Schedule 3 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
[54] (1997) FLC �92-755 at 84,228.
[55] Fitzpatrick v Stirling Housing Association Ltd [2001] 1 AC 27. See A Lester and D Pannick, Human Rights Law and Practice (2nd ed, 2004), 423 [4.14.19].
[56] See eg Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 492 [29] per Gleeson CJ.
[57] (1993) FLC �92-416.
[58] (1992) 177 CLR 292.
[59] (1992) 177 CLR 292 at 360.
[60] Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 642, per Kirby J. See also H Charlesworth, M Chiam, D Hovell and G Williams, "Deep Anxieties: Australia and the International Legal Order" (2003) 25:4 Sydney Law Review 423 at 460.
[61] Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 642, per Kirby J. See also H Charlesworth, M Chiam, D Hovell and G Williams, "Deep Anxieties: Australia and the International Legal Order" (2003) 25:4 Sydney Law Review 423 at 460.
[62] (2001) 206 CLR 401.
[63] Unreported, 30 November 2000 (Ellis, Coleman and Joske JJ).
[64] [2000] Fam CA 461 at 45.
[65] Director General of Family and Community Services v Davis (1990) FLC �92-182 at 78,226.
[66] See DeL v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 686.
[67] (2001) 206 CLR 401 at 406-409.
[68] (2001) 206 CLR 401 at 418-424.
[69] Quoted in A B Nicholson, "Australian Judicial Attitudes to the Convention on The Civil Aspects of International Child Abduction" (Paper presented to The International Society of Family Law 8th World Conference, Cardiff, 1 July 2004) at 25.
[70] (1993) FLC �92-416.
[71] Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42 per Brennan J.
[72] (2003) 77 ALJR 1312; 199 ALR 131.
[73] International Covenant on Civil and Political Rights 1966; International Covenant on Economic, Social and Cultural Rights 1966.
[74] (2003) 77 ALJR 1312 at 1321 fn 42; 199 ALR 131 at 143.
[75] (2003) 77 ALJR 1313 at 1321 [35]; 199 ALR 131 at 143-144.
[76] A M Gleeson "Global Influences of the Australian Judiciary" (2002) 22 Australian Bar Review 184 at 187.
[77] A F Mason, "International Law and its Relationship with Family Law" (1995) Enhancing Access to Justice: Family Court of Australia, Second National Conference Papers 15 at 26.
[78] (1995) 183 CLR 273.
[79] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699; 195 ALR 502.
[80] (2001) FLC �93-086.
[81] (1998) 197 CLR 172.
[82] Pursuant to s 93A(2) of the Family Law Act 1975 (Cth).
[83] (2001) FLC �93-086 at 88, 521, per Nicholson CJ, Ellis and Mullane JJ.
[84] (2001) FLC �93-086 at 88, 523.
[85] (2001) FLC �93-086 at 88, 524.
[86] DJS v LJT B95/2001 (19 March 2002) (Kirby and Hayne JJ) (http://www.austlii.edu.au/cgi-bin/disp.pl/au/other/hca/transcripts/2001/B95/1.html?query=djs+v+ljt).
[87] J Millbank, "Domestic Violence, the Unrepresented Litigant and Access to Justice" (www.familycourt.gov.au/papers/html/millbank2.html).
[88] cf A B Nicholson, "Australian Judicial Approaches to International Human Rights Conventions and 'Family Law'" (Paper presented to The Miller Du Toit and The Law Faculty of the University of Western Cape Family Law Conference, Cape Town, South Africa, 26 March 2002) at 24; cf J R Morss, "Saving Human Rights from Its Friends: A Critique of the Imaginary Justice of Costas Douzinas" (2003) 27 Melbourne University Law Review 889 at 901-904.
[89] Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 657.
[90] As to hostility to my approach see K Walker, "The Intersection of International Law and Australian Constitutional Law" in J S Jones and J Macmillan (eds) Public Law Intersections, Centre for International and Public Law, ANU, 2001, 97.
[91] P Spiro, "Treaties, International Law, and Constitutional Rights" (2003) 55 Stanford Law Review 1999 at 2022 (footnote omitted).
[92] I Brownlie, Principles of Public Internatioinal Law (5th ed, Clarendon, 1998), 584 at 708. See also G V La Forest, "The Expanding Role of the Supreme Court of Canada in International Law Issues" (1996) 34 Canadian Year Book 89 at 100; The Queen v Finta [1994] 1 SCR 701 at 774 per La Forest J; cf G Van Ert, Using International Law in Canadian Courts (Kluwer, 2002), 46.
[93] A B Nicholson, "Children and Young People - The Law and Human Rights" (Sir Richard Blackburn Lecture, 14 May 2002) at 15; A B Nicholson, "Unmarried Families: Respect, Recognition and Rights 'Down Under'" (Paper presented to the International Society of Family Law 11th World Conference: Family Life and Human Rights, University of Copenhagen, 2 August 202) at 22.
[94] A B Nicholson, "Children and Young People - The Law and Human Rights" (Sir Richard Blackburn Lecture, 14 May 2002) at 14. See also A B Nicholson, "Implementing the UN Convention on the Rights of the Child in Australia" (Paper presented to the South Australian Children's Interest Bureau, 21 December 1993).
[95] A F Mason, "International Law and its Relationship with Family Law" (1995) Enhancing Access to Justice: Family Court of Australia, Second National Conference Papers 15 at 26.
[96] M D Kirby, "Family Law and Human Rights" (2003) 17(1) Australian Journal of Family Law 6 at 17.
[97] See Teoh (1995) 183 CLR 273 at 288 per Mason CJ and Deane J; Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337 at 384-386, per Gummow and Hayne JJ and also H Charlesworth, M Chiam, D Hovell and G Williams, "Deep Anxieties: Australia and the International Legal Order" (2003) 25:4 Sydney Law Review 423 at 463-464.